Copyright Notice: We don't think much of copyright, so you can do what you want with the content on this blog. Of
course we
are hungry
for publicity, so we would be pleased if you avoided plagiarism and gave us credit for what we have written. We
encourage you not to impose copyright restrictions on your "derivative" works, but we won't try to stop you. For the legally or statist minded,
you can consider yourself subject to a Creative Commons Attribution License.

Our former fellow blogger, Larry Lessig, has a new book out and it has been reviewed today in the New York Times link here .

The review is favorable, arguing that the book is on the side of the public interest, but at the same time, critical because it concludes the proposed cure for bad law flowing from special interest money in policy making is unlikely to succeed--the interests on the other side just have too much at stake.

In the end, the book implies that the cure for what ails the body politic will be found in voter education and that will involve a long wait.

The defendants include Bertelsmann, Sony BMG Music Entertainment, Sony Corporation of America, Capitol Records (dba EMI Music North America), EMI Group North America, Capitol-EMI Music, Virgin Records America, Time Warner, UMG Recordings and Warner Music Group, which allegedly control 80 percent of the digital music in the United States.

Consumers claim in the proposed class action that all of the labels signed distribution agreements with two joint-venture entities called MusicNet and Pressplay, through which they allegedly conspired to fix the price, terms of sale and restrictions on digital music.

Each licensing agreement allegedly included publicly hidden Most Favored Nation clauses, guaranteeing that one licensor would receive at least equivalent licensing terms as another licensor. In effect, these agreements set wholesale price floor at 70 cents per song for Internet music, increasing prices as the cost to distribute Internet music fell to essentially zero, consumer class says.

In my mind, "ethics" and "law abiding" are not always synonymous. Witness this:

BOSTON (AP) -- A Harvard University fellow studying ethics has been accused of using the Massachusetts Institute of Technology's computer network to steal nearly 5 million academic articles.

A federal indictment released Tuesday accused 24-year-old Aaron Swartz of stealing the documents from JSTOR, a subscription service that offers digitized copies of articles from more than 1,000 academic journals.
...
Prosecutors say he intended to distribute the articles on file-sharing websites.

Because Lord knows that if he got away with this, the incentive to write academic articles would completely collapse.

Shouldn't the AP put the word "steal" in quotes here? Amazing how the whole "theft" lingo false meme has so causally pervaded discussions of IP. Might I suggest he has been accused of "liberating information without authorization"?

On March 7, Camelot Distribution Group, an obscure film company in Los Angeles, unveiled its latest and potentially most profitable release: a federal lawsuit against BitTorrent users who allegedly downloaded the company's 2010 B-movie revenge flick Nude Nuns With Big Guns between January and March of this year. The single lawsuit targets 5,865 downloaders, making it theoretically worth as much as $879,750,000 more money than the U.S. box-office gross for Avatar.

SAP (the world's largest maker of business application software) has been ordered to pay $1.3-billion (with a 'B') to Oracle - the largest fine ever levied for a copyright infringement case (and the 23rd largest jury verdict in history).

That's ten times larger than the biggest verdict the RIAA was ever able to produce in its own litigation. I'd look for some legal challenges to this verdict, including some potential constitutional arguments which try to expand the reasoning behind BMW v. Gore [ http://en.wikipedia.org/wiki/BMW_of_North_America,_Inc._v._Gore ]

The New York Times now carries a lot of stories that are of interest to anyone concerned about the high cost of intellectual property protection. The first story today is a debate over who is right AARP or the industry. AARP says the cost of branded drugs rose 8.3% in 2009 link here. Last year the industry complained that the figure was based on wholesale prices, not the retail prices consumers actually paid. Responding to that criticism, AARP switched to retail and still got a big increase. The industry countered that they should use the consumer price index figure which includes generic drug prices--which showed a much lower price increase and argues that the US has the lowest prices for generics in the world.

Of course, all of this back and forth is irrelevant; the high prices for the branded drugs reflect the monopoly that drug patents give the companies a fact never mentioned in the Times story. That monopoly power allows the companies to raise prices at a time when the economy is in recession and other prices are barely rising. It is also a time when many are unemployed and have a harder time making ends meet; particularly if they are ill and require those drugs.

The other story relates to e-books and a quarrel between Random House, the publisher and the Wylie literary agency link here. The quarrel began because Wylie started publishing e-book versions of 13 classics, previously published in hard copy by Random House. Because e-books are newer than the publisher's contracts with the authors and not always covered by its terms, Wylie felt free to enter the e-book business in them. Random countered by refusing to deal with Wylie in future. The two sides have now agreed, with Wylie ceasing to distribute the 13 e-books. No other terms were published.

Send not to know who pays. Clearly it is we consumers and copyright once again loses its reason for being as an inducement to innovate. These books have long been in existence and can have little to do with the incentive to write more for aging, moribund, or dead authors, given that copyright extends for the life of the author plus 70 years.

The longest-outstanding case is Bilski v. Kappos, which involves the patentability of "business methods." Bilski was argued in November. The only Justice who has not issued a majority opinion from that sitting is Justice Stevens, which makes him the very likely author. Justice Stevens tends to take a narrow view of patent rights. He notably joined Justice Breyer's opinion in Laboratory Corp. v. Metabolite in 2006 arguing for a narrow interpretation of process patent rights, which is a similar issue.

At oral argument in Bilski, Justice Stevens was very engaged. He asked counsel for the patentee the following telling question: "But is it correct that there's none - none of our cases has ever approved a rule such as you advocate?" Justice Stevens also was seemingly doubtful that the involvement of a machine could render a process patentable, and furthermore that software could be patentable, which suggests a very narrow interpretation of business method patents and that the ruling could spell significant trouble for software patents.

I ultimately predict that the Bilski majority opinion will be authored by Justice Stevens and that the decision will be very significant in its narrowing of the scope of method patents. I expect that the delay in resolving the case will have arisen not from disagreement over whether this particular invention is patentable - I think the Court will unanimously hold that it isn't - but over the scope of the rule.